Cal Am’s pursuit of a desalination plant in Marina will likely face a pivotal court test this week as the Ag Land Trust has joined the Marina Coast Water District in challenging the legality of the water company’s proposed test well.

Cal Am officials have said that the project timeline could be pushed back a year or more if it can’t drill by the end of the coming week, but it remains to be seen if the stated deadline is real or part of an effort to put pressure on the various agencies involved in the process. Cal Am has said it has drills and other equipment ready to roll.

The Ag Land Trust filed suit late Friday in Monterey County Superior Court, contending that Cal Am, also known as California American Water, simply doesn’t have rights to the water it intends to pump. It also contends that the California Coastal Commission acted illegally when it ruled last month that the test well could proceed. (Click here for copy of lawsuit.)

Marina Coast originally filed its action in Sacramento Superior Court because the Coastal Commission is a state body, but a judge in the capital ruled last week that the matter should be heard in Monterey. Ag Land Trust officials may attempt to move the case elsewhere but elected to pursue their challenge in Monterey in the meantime.

“Cal Am has no groundwater rights in the over-drafted Salinas River groundwater basin and cannot acquire any in an over-drafted basin,” said the Ag Land Trust petition. The action was filed on the Ag Land Trust’s behalf by William Parkin. He is a partner in the Santa Cruz law firm of Wittwer Parkin, where Gary Patton, the founding executive of LandWatch, was a partner until 2013. Cal Am’s lawyer, Tony Lombardo, couldn’t be reached on Saturday.

Ag Land Trust President Aaron Johnson

For more background on the test well and related issues, see this Partisan story from last month.

The Ag Land Trust is a non-profit land conservancy that has protected some 25,000 acres of farmland in Monterey, Santa Cruz and San Benito counties through conservation easements. It owns property adjoining the site of the test well, the Cemexindustrial site, and has two wells in the area. The president of the Ag Land Trust is lawyer Aaron Johnson and other key board members include grower David Gill, Kellie Morgantini of Legal Services for Seniors, managing director Stewart Darlington, former county ag director Richard Nutter, and lawyer Marc del Piero, a former Monterey County supervisor and frequent critic of Cal Am. To a large degree, the trust represents the interests of both environmentalists and Salinas Valley agriculture, which is opposed to any infringement on its right to water from the Salinas Valley aquifer. Reconciling the needs of the water-short Peninsula with Salinas Valley interests has been a balancing act that Cal Am hasn’t yet accomplished.

Cal Am lawyer Anthony Lombardo

The test well would be drilled at the Cemex property and slanted toward the ocean so it would draw in a mixture of sea water and fresh water to help determine the desalination plant’s potential impact of marine life, area groundwater and seawater intrusion. If the plant proceeds at that location, the well would become one of the main intakes.

Though a test well might seem to be a minor part of a large endeavor, the $400 million-plus desalination project, getting it approved has proved to be a major obstacle for Cal Am.

For political purposes, the location is an unfortunate one for Cal Am. While Cal Am serves most of the Monterey Peninsula, the Marina area is served by the Marina Coast Water District. Not only does Marina Coast have little to gain from a desalination plant in it jurisdiction, it was a partner with Cal Am and Monterey County in the storied failure of a previous attempt to build a desalination plant. Marina Coast is now locked in litigation with Cal Am and the county over millions in unrecovered costs from the earlier project and the responsibility for millions of dollars in unpaid bills. Trial testimony in that litigation ended earlier this month and the parties are awaiting an initial ruling. Cal Am supporters have suggested privately that Marina Coast filed the action over the test well to help pressure Cal Am to settle the financial litigation.

In pursuit of the test well, Cal Am originally sought a permit from the city of Marina but the City Council, closely allied with the Marina Coast Water District’s board of directors, turned it down on grounds that it had not been subjected to a required environmental impact study.

Cal Am appealed the denial to the Coastal Commission, which overturned the Marina council.

Friday’s filing by the Ag Land Trust contends the Coastal Commission did not perform a satisfactory environmental review and did not consider the potential impacts on the groundwater or other wells in the area.

The Cemex sand-mining operation along Monterey Bay north of Marina, which is where Cal Am wants to drill a desalination test well.

During the political campaigning that ended with last week’s election, Democratic Congressman Sam Farr did something unusual. In the race for two seats on the Marina City Council, he endorsed strongly conservative Nancy Amadeo and registered independent Dan Devlin Jr. instead of Democratic incumbent Dave Brown.

Farr’s explanation was straightforward. He was punishing Brown for not voting to let Cal Am Water drill a desalination test well in the Marina sand dunes.

In an email, Farr explained, “I support friends. I support (Mayor Bruce Delgado) and Nancy because they supported the rest of the Peninsula’s effort to solve the water issue. I thought the blockage (the majority vote against the permit) was selfish and punitive.”

Farr’s choice helps illustrate how much energy and politicking is going into the unresolved issue of whether Cal Am should be allowed to proceed with a test well. Ultimately, it’s about a lot more than a simple well, of course. It is the latest in a series of increasingly testy fights between the Cal Am camp, which includes the hospitality industry and other business interests, and Cal Am’s detractors, which include many area environmental activists and others who worry what an expensive desalination plant is going to do to the already high cost of water locally.

Cal Am has been trying for most of this year to move ahead with a plan to drill a test well to help determine whether the Cemex sand mining property on the Marina shoreline is a feasible location for the desalination plant it hopes to build to help solve the Peninsula’s water shortage. In essence, the plan is to drill a well slightly inland from the ocean to draw seawater and some fresh groundwater and determine whether the sand can serve as a filter to prevent the intake of sea life.

Engineers also want to see how much fresh water would be drawn into the well, an issue of grave concern to neighboring property owners and others with rights to the Salinas Valley aquifer, which reaches to Marina and beyond. If things go well, the well could be converted to a production well for the actual desalination plant.

Rather than granting a permit, however, the majority of the Marina City Council voted to require an environmental impact report, which would add many months to the desalination project. The council members say they were only protecting the environment and state environmental laws that require EIRs for projects that create the potential for significant harm. In an appeal to the California Coastal Commission, Cal Am and its cohorts say the issue is the economic health of the Peninsula, which they say easily trumps the environmental niceties.

The issue goes to the Monterey County Board of Supervisors Tuesday Nov. 11 for an advisory vote and then to the Coastal Commission the next day for a possible vote on a motion to overturn the city of Marina and allow Cal Am to proceed. Under tremendous political pressure to permit the testing, the commission is likely to say yes, but don’t expect it to end there. Much of the opposition input is written like legal briefs, so the two sides are likely to see each other in court.

Here, the Partisan will try to explain what’s happening, a task that will tax our analytical skills to the max. It might take a while, so you might want to take a seat.

BACKGROUND

As most everyone knows by now, the state Water Resources Board has issued an order requiring the Peninsula to reduce its reliance on the threatened Carmel River starting in 2016. After Plans A, B and C fell through, the only real plan in place now involves construction of a desalination plant along with a handful of supplemental projects, including additional wastewater reclamation.

Unfortunately for all, the process has been compromised by petty corruption, politics of all sorts, litigation and bureaucratic dilly-dallying. It became obvious long ago that there is no chance of meeting the state’s deadline, which is why an assortment of Peninsula bigwigs is preparing to descend on Sacramento later this month to beg for mercy and time. The state agency is fully empowered to require deep reductions in water usage, and the water-reliant hospitality industry is in near-panic mode.

Well testing is expected to take more than two years, once it gets started, and actual construction of the desalination plant couldn’t begin until completion of an arduous regulatory process and additional engineering work. Even so, Cal Am and the area officials hope to obtain the well-drilling permit as a signal to the state that progress is, at long last, being made.

THE VOTE

After a series of delays, Cal Am’s permit application finally went to the Marina City Council for a vote on Sept. 4. The issue put the council in an unusual position. Most city governments in the area are solidly behind Cal Am’s desalination plan because their jurisdictions are running short on water and political leaders are worried about the economic impact of a severe water cutback. Marina isn’t served by Cal Am, however. It has its own water district, the Marina Coast Water District and would not be directly affected by the state cutback order.

Making things more complicated, the Marina Coast Water District was a partner with Cal Am and Monterey County in an earlier incarnation of a desalination project. That venture fell apart, but Marina Coast Water District believes Cal Am still owes it some big money from that failed effort. Not so incidentally, trial over that dispute is scheduled to begin Dec. 1 in San Francisco.

Also not so incidentally, the City Council majority in Marina is politically compatible with the majority of the Marina Coast board, so Cal Am wasn’t as warmly received in Marina as it might have hoped. When Cal Am and its supporters in the hospitality industry complain about obstructionists and those who would destroy the Peninsula’s economy, Marina officials don’t quiver the way their counterparts in Monterey, Seaside or Carmel might.

RATIONALE

Anybody who is anybody in the world of water testified before the Marina council. Cal Am argued that there was no reason not to proceed. Time’s a’wasting, the company emphasized. Representatives of the hospitality industry, who had pressured employees to attend, warned of dire economic consequences if the vote went the wrong way. Cal Am critics argued that Cal Am and the industry have made an unholy alliance with hotel officials supporting Cal Am in exchange for a sweetheart arrangement on water rates.

The meeting went on forever.

In the end, the Marina council voted 3-2 to require that Cal Am perform an environmental impact report before proceeding with the test well. Council members said they were concerned primarily about the well’s potential impact on the surrounding groundwater in the Salinas Valley aquifer. They also were concerned about whether the pumping would violate the water rights of other property owners.

The technical grounds for the decision are important now for legal reasons. The council members in the majority—David Brown, Frank O’Connell, and Gail Norton—said they felt compelled to vote as they did no matter how they felt about the desalination plant and the threat of economic harm to the community. Clearly, they said, pumping a large amount of water along the shoreline could have significant environmental impacts, so the law requires full exploration of the potentials.

Councilman Brown won re-election last week despite falling into disfavor with Farr. He explained the thinking in a subsequent email to Farr. He noted that the other two lawyers on the council agreed with his analysis:

“First, I did not vote against desal, or desal in Marina. I simply voted to require an EIR. Second, our CEQA (California Environmental Quality Act) attorney explained the matter as somewhat analogous to a motion for summary judgment, namely if there is opposing environmental evidence on both sides of the issue, from experts, as to the possibility of environmental harm to Marina’s 180-foot aquifer, we don’t weigh the evidence, we simply note the conflict and then require an EIR.

“There was expert testimony from engineer Brian Lee of (Marina Coast Water District) of such harm. I viewed the matter as more of a legal one than anything else, and as an attorney I felt I had to respect that process . . . . You may recall that a few months earlier, I voted to approve (in a 3-2 vote) Cal Am’s bid to drill temporary boreholes at the Cemex plant, for water-quality testing. I voted that way because it was clear there would be no significant environmental impact.”

APPEAL PROCESS

Cal Am quickly appealed to the Coastal Commission, which has the power to overturn local jurisdictions in cases involving significant public works projects.

The commission staff is recommending that the commission grant the test well permit. The staff’s legal argument is largely that the City Council did not properly document its position in the context of the city’s coastal protection plan as approved by the commission and that the overriding issue, the Peninsula’s water supply, is more important than an EIR.

The staff found that alternative locations for the test well and the desalination plant itself are more environmentally vulnerable than the already developed Cemex site. The staff also found that the public interest compels approval of the test well because progress on the project is necessary in order for the Peninsula to eventually abide by the state’s water cutback order.

The staff did concur with the City Council in places. It said the test well plan is inconsistent with the city- and commission-approved coastal habitat protection plan and that numerous requirements should be attached to the permit to assure that Cal Am protects the site to the greatest extent possible and is responsible for eventual cleanup.

One thing that is curious about the staff report is that it keys on the city’s rationale for essentially denying the permit but does not include a full transcript of the city proceedings.

Tom Moore, chairman of the Marina Coast Water District board, pointd that out in a note to the district engineer.

“Someone brought to my attention the fact that it appears as though the Coastal Commission staff has redacted more than 200 pages from the City of Marina’s transcript of the slant well hearings before the City Council in September. The online staff report to the Coastal Commissioners on this item for Wednesday’s meeting contains less than 40 of the more than 300 pages of the transcript.”

After listing the missing pages, Moore continued, “I have to say that this boggles my mind. Who authorized such an extensive redaction, one that prevents the Coastal Commissioners and the public from understanding the entirety of the proceedings that were held before Marina City Council.”

PRO AND CON

Presumably, correspondence on the issue was flowing into the commission in the past weeks. Farr, among others, wrote a letter strongly supporting the permitting of a test well.

Among those writing letters in opposition was the Ag Land Trust, which owns rights to Salinas Valley aquifer water in the area.

“The Coastal Commission, if it follows (the staff’s) wrongful advice, will be taking an ‘ultra viras’ (beyond its power) act and approving an illegal test well which violates CEQA, which fails to address the cumulative adverse impacts of the project as a whole and which will result in an unlawful ‘taking’ of groundwater rights from the Ag Land Trust and other rights holders.”

The Ag Land Trust letter was signed by former county Supervisor Marc Del Piero, a lawyer who has specialized in water, and Richard Nutter, retired Monterey County ag commission

The trust said it owns extensive groundwater rights in the area, including on property adjacent to the Cemex property, and that Cal Am has not produced any evidence that it has any rights to groundwater that would be pumped along with seawater. In its 11-page letter, the trust also said the test well would violate numerous provisions of the Marina coastal plan as approved by the commission and not just the habitat provision cited by the staff.

“The Ag Land Trust understands that there is a water shortage on the Monterey Peninsula. We have not caused nor have we contributed to that problem. It has gone on for decades . . . . The water shortage that is of Cal Am making, by its failure to produce a water supply project in over 20 years, does not justify the commission staff’s proposed illegal taking of our groundwater and property rights and the intentional contamination of our potable aquifers and wells for the sold and private economic benefit of Cal Am.”

So there you have it. Important stuff. And, as always, the Partisan would like to know what you think. You can leave a comment below.